ILLEGAL DOWNLOADING OF COPYRIGHT WORKS FROM THE PERSPECTIVE OF CRIMINAL LAW
Probably every internet user has downloaded a movie, song or photo for their personal use. The more proficient ones may have even downloaded a computer programme (e.g. a computer game). Of course, there are files that are not subject to copyright, but we usually face a problem that a given file is a work within the meaning of Section 2 of Act No. 121/2000 Coll., the Copyright Act (hereinafter referred to as the “Copyright Act”). Does a user who downloads a copyright work from an illegal source commit an illegal act and, if so, can illegal downloading be punishable under criminal law?
Nowadays, there are many paid legal online platforms with access to copyright works (especially movies and TV series) such as Netflix, HBO GO, Disney+, etc. Another way to access computer files is via data storage services such as Ulož.to. Works available in such repositories are often of obscure origin and apparently lacking a license to download them but are available for free. Finally, there are sites where the uploaded copyright content is clearly illegal, in particular domains allowing torrent downloads and operating on a peer-to-peer basis (i.e. data flows directly from individual users to other users). The police are actively trying to eliminate these platforms but their work is complicated by the fact that these sites are often global and their originators are not easy to trace.
The question of whether downloading copyright content for personal use is permissible has been addressed by the Supreme Court in the past. The Court has held that the making of a copy of a copyright work solely for personal use within the meaning of Section 30 (1) and (2) of the Copyright Act does not constitute an unauthorised interference with copyright and related rights. At the same time, the Supreme Court has held that the Copyright Act does not preclude the legal making of multiple copies for personal use, provided that this does not interfere with the normal use of the work and does not prejudice the legitimate interests of the author. In the opinion of the Supreme Court, it is irrelevant from which source the copy is made for personal use, i.e. it may be obtained illegally (e.g. by downloading the copyright work from the internet). However, it must not be a copy of a computer programme, since the making of a copy of such copyright work is excluded by the Copyright Act in Section 66.[1]
No wonder that the general public still believes that there is nothing wrong with downloading from the internet for personal use when the Supreme Court has taken the same view. But the aforementioned case law has now been overtaken by the case law of the Court of Justice of the European Union (the “Court of Justice”). The Court of Justice expressed the view that the illegal making of copies, albeit for personal use only, could not be subsumed into the exception allowing it. The Court of Justice justified its conclusion by stating that a restrictive interpretation must be applied in creating exceptions to copyright since the copyright which is being interfered with in this extraordinary manner permitted by law is a right of an absolute nature. The Court of Justice further pointed out that in the event of illegal downloading of a copyright work, the author cannot obtain adequate compensation, and therefore downloading from illegal sources, even for personal use, must be discouraged.[2]
The Court of Justice emphasised the necessity of applying the so-called Berne three-step test, which can be considered a material condition for the non-contractual use of a work that must be fulfilled in addition to the individual statutory licences stipulated by law (formal condition). The three conditions that must be fulfilled for the admissibility of an exception to copyright in favour of the making of copies of a copyright work for personal use are as follows:
- 1) It is a special case provided for in the law.
- 2) The use of the work must not conflict with the normal use of the work.
- 3) The legitimate interests of the author must not be unreasonably prejudiced.
The Court of Justice held that even if the first two conditions of the test are met, downloading copies from illegal sources can never satisfy the third condition of the test, since authors do not receive compensation when works are downloaded from illegal sources and this ipso facto excessively affects the legitimate interests of the author. In view of the above, it can be concluded that downloading copyright content from illegal sources is unlawful.
But can such conduct be punished under criminal law?
The case law focuses exclusively on communication of the work to the public (uploading works to the internet without the author’s permission) and not on downloading. This stems primarily from the lower social harmfulness of downloading. It is treated more benevolently by the law enforcement authorities in accordance with the principle of subsidiarity of criminal repression as the act does not reach such social harmfulness that it could not be resolved within the limits of civil law or administrative law remedies.
Yet, illegal downloading could accomplish the facts of Section 270 of Act No. 40/2009 Coll., the Criminal Code (hereinafter referred to as the “Criminal Code”). This provision reads as follows “Whoever unlawfully interferes not insignificantly with the legally protected rights to a copyright work, an artistic performance, an audio or audio-visual recording, a radio or television broadcast or a database shall be punished by imprisonment for up to two years, prohibition of activity or confiscation of property or other material value.”[3] For the sake of simplicity, I work only with the term copyright work in this article but my conclusions are fully applicable to other rights related to copyright within the meaning of Section 270 of the Criminal Code.
As I stated above, the condition of interference with protected rights in a copyright work will be met in the case of downloading and thus the interpretation of the phrase “not insignificantly” will be key. The interference must be not insubstantial in order to satisfy the facts of the crime. The commentary literature on the subject states that each case must be assessed individually, in particular taking into account the intensity of the interference with the legally protected rights, the manner in which the act was carried out, the consequences of the act in terms of the authors’ personal and property rights, and whether the interference was an isolated incident or whether it was of a long-lasting or repetitive nature. Last but not least, it will be necessary to assess the perpetrator as a person, the manner and degree of their culpability, their motivation and whether they have committed a similar act in the past.[4]
It should be noted that the condition of not insignificant interference will generally not be met in the case of downloading a work by the end user since the damage caused by downloading, for example, one film is only in the order of crowns. The Supreme Court has held that the calculation of damages must be based on the amount that the copyright holders would have received if they had legally made the downloaded content available in a comparable manner (e.g. through online video rental services in the case of films and series) and that the amount of lost profits cannot be calculated from the usual price of the tangible medium (e.g. DVD).[5]
At the same time, it is more profitable for copyright holders to claim compensation from the operators of web platforms or the persons who uploaded the work to the internet than from the users who downloaded the work. Individual users cause only minor damage by downloading the work and it would be economically disadvantageous and technically virtually impossible to claim damages from each of them. Moreover, on 7 June 2021, Directive 2019/790 of the European Parliament and of the Council of the European Union came into force [6], which, among other things, imposes new obligations on providers of online content-sharing services. The Directive imposes an obligation on service providers to make “best efforts” to prevent the dissemination of copyright-infringing content, which is the only way for them to exclude their liability.
However, as I outlined above, it can be problematic for ordinary users when a user downloads a torrent file. At the moment of downloading, the user is also sending the data to other users, thereby reproducing the work further.[7] Any user is thus a potential accomplice in the crime, not primarily because of the downloading of the work itself but because of the further sharing of the work. The joint conduct of multiple users may satisfy the “not insubstantial” copyright infringement requirement.[8]
What are the real penalties for illegal downloading of copyright content on the internet?
It can be concluded that downloading copyright works will only cause an insignificant infringement of copyright, i.e. if the user does not download torrent files and does not share them further, they do not have to worry about criminal sanctions. However, the conduct may qualify as an offence under the Copyright Act. Section 105a (1) (a) of the Copyright Act applies to the downloading of a copyright work, and under this provision a fine of up to CZK 150,000 can be imposed for unauthorised use of a copyright work. Theoretically, this includes any interference with an author’s work that does not reach the intensity of a “not insignificant” interference. Thus, on a purely formal level, the user commits an offence every time they download copyright content from an illegal source. However, on a practical level, the competent authorities do not pay attention to downloading content from the internet and I am not aware of a single case where a user has been fined or even prosecuted for downloading copyright content for their own use.
Mgr. Bc. Václav Pindur
Advokátní kancelář Brož & Sokol & Novák s.r.o.
Sokolská třída 60
120 00 Praha 2
Tel.: +420 224 941 946
e-mail: advokati@akbsn.eu
[1] Resolution of the Supreme Court of 25 March 2009, file no. 5 Tdo 234/2009
[2] Judgement of the Court of Justice (Fourth Chamber) of 10 April 2014, ACI Adam BV and Others v Stichting de Thuiskopie and Stichting Onderhandelingen Thuiskopie vergoeding, file no. C-435/12
[3] Provisions of Section 270 (1) of Act no. 40/2009 Coll., the Criminal Code, as amended
[4] ŠČERBA, Filip. Section 270 [Infringement of copyright, copyright-related rights and database rights]. In: ŠČERBA, Filip a kol. Criminal Code. Commentary. Prague: C. H. Beck, 2020, p. 2152
[5] Resolution of the Supreme Court of 8 October 2014, file no.: 5 Tdo 171/2014
[6] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC
[7] Provisions of Section 13 of Act no. 121/2000 Coll., the Copyright Act, as amended
[8] SKUPIN, Zdeněk Jiří. Reflection on the circumstances precluding illegality in criminal interference with copyright using P2P and in particular client-server networks, with an emphasis on legitimate self-defence and extreme necessity. Trestněprávní revue, 2019, no. 2, pp. 27-35
